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Officiating Removal

For the last several years, the Commonwealth of Pennsylvania has quietly attempted to curtail capital defendants’ representation in state postconviction proceedings. In 2011, various justices on the Pennsylvania Supreme Court began to call for federally funded community defender organizations to stop representing capital defendants in state postconviction proceedings. The justices argued, among other things, that the organizations’ representation of capital defendants constituted impermissible federal interference with state governmental processes and burdened state judicial resources. The court also alleged the community defender organizations were in violation of federal statutes, which only authorized the organizations to assist state prisoners in federal, but not state, court. It did not take long for the Philadelphia District Attorney’s Office to pick up on these signals. The District Attorney’s Office filed suit in state court to preclude all federal community defender organizations from representing defendants in state postconviction proceedings. But after the community defenders organization removed the suit to federal court, the District Attorney’s Office voluntarily dismissed the case.

Then something curious happened. Instead of giving up on the effort altogether, the Pennsylvania Supreme Court, sometimes on its own motion and sometimes at the invitation of the District Attorney’s Office, issued orders disqualifying federal community defender organizations from representing prisoners in individual state postconviction proceedings. The orders disqualified the organizations on the ground that federal law did not authorize them to assist in state postconviction proceedings. By pursuing the argument in this way, the Commonwealth sought to ensure the issue would be heard in state, not federal court. Under the general removal statute, state postconviction proceedings cannot be removed to federal court, nor can disqualification motions ancillary to those proceedings be removed to federal court. The community defender organizations have instead sought to remove these cases under a less well‐known removal statute providing for the removal of suits directed against acts under color of a federal office.

The Pennsylvania litigation is fascinating for a number of reasons. The litigation involves serious allegations about the federal community defenders’ actions in state court and whether federal law permits such organizations to represent state prisoners in state court. The case also raises a litany of interesting federal courts questions, for example, whether the statute regulating community defender organizations contains a private right of action that allows the Commonwealth to sue to enforce it.

This Essay focuses on a more basic question. Do federal courts have the power to hear the Commonwealth’s claims that the defender organizations should be disqualified from individual postconviction proceedings because their participation in those proceedings violates a federal statute? Several federal district courts reached different conclusions. The U.S. Court of Appeals for the Third Circuit recently held the suits were removable under a little‐known statute permitting removal of suits against federal officers. While the Third Circuit’s bottom line is sound, the Pennsylvania litigation illustrates several gaps in our jurisdictional policy—gaps that the federal‐officer removal statute often fails to address. First, the Pennsylvania litigation illustrates how jurisdictional rules other than the well‐pleaded complaint rule ensure that serious issues of federal law may never find their way into federal court. Second, the Pennsylvania litigation shows how basic jurisdictional rules that purportedly ensure against state‐court bias—such as the district court’s federal question jurisdiction—fail to address very real possible claims of state‐court bias.